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HomeMy WebLinkAbout82-547 OBrienMr. Louis G. O'Brien PA Department of Transportation Bureau of Highway Design 1116 Transportation and Safety Building Harrisburg, Pennsylvania 17108 Dear Mr. O'Brien: Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 May 26, 1982 ADVICE OF COUNSEL 82 RE: Section 3(e), Highway Engineering Manager, Employment by Private Corporation This responds to your letter of May 6, 1982 in which you requested an opinion from the State Ethics Commission. Issue: What restrictions does the Ethics Act place on a retiring Highway Engineering Manager in the Pennsylvania Department of Transportation's (PennDot) Bureau of Highway Design with respect to his entering the private sector as Executive Vice - President of a newly formed corporation, the marke- ting area of which will include the Pennsylvania State government? Facts: You presently serve as Highway Engineering Manager in the Bureau of Highway Design in the Department of Transportation. You will retire from this position as of the close of business on June 4, 1982. Upon your retirement, you will begin private employment as Executive Vice - President of Interestate Slurry Seal, Inc., as a new Pennsylvania corporation. The corporation will develop, test, promote and construct "iow energy pavement systems. The marketing area will be the Northweastern states, including Pennsylvania, and county, city, municipal and Federal government agencies. The principals of Interstate Slurry Seal are presently prequi,lified as contractors by Penn Dot. They bid competitvely for paving work in the Commonwealth for PennDot and for local governments, trading as Interstate Asphalt et al. As Executive Vice - President you will organize, manage and direct research and development. You will prepare reports, specifications, competitive bid proposals and private bid quotations. You will draft technical data sheets and reports, conduct field demonstrations and direct field construction personnel. You may have contact with the Governor's Energy Council and the Department of Environmental Resources (DER). State Ethics Commission • 308 Finance Building • Harrisburg, PenrisylvaniE Mr. Louis G. O'Brien May 26, 1982 Page 2 Specifically, you question the effect of the Ethics Act on your ability: 1. to participate in demonstration projects of new materials; 2. to prepare data and make technical presentations to the Secretary and /or Deputy Secretary of Transportation and to District or Material Engineers; 3. to work with the Pennsylvania State University on research projects for the Federal Highway Administration; 4. to prepare bidding documents for Iow bid state contracts and direct construction activities; 5. to contract or supply technical data or reports to the Bureaus of Highway Design, Maintenance, Services or Contract Qaulity personnel; 6. to assist your replacement on Interactive Computer Design anu Drafting, at no cost; 7. to contact the Pennsylvania Department of Transportation staff on committee business, in your capacity as a member of the Transportation Research Board in Washington, D.C.; 8. to contract, inquire of, or participate in group discussion.; with PennDot staff members on matters of industrywide implications, in your position as a member of a contracting industry group. Discussion: As Highway Engineering Manager for PennDot's Bureau of Highway Design, you are a public employee subject to the Ethics Act. 65 P.S. §401 et seq. Upon leaving your employment you became a "former public employee." Section 3(e) of the Act states: No former official or public employee shall represent any person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. §403(e). The governmental body with which you are associated is the Bureau of Highway Design. Thus, the one -year restriction applies only to your representing persons before that Bureau. The Act does not affect your ability to appear before other Bureaus in PennDot, other governmental entities, out -of -state governmental bodies, or private entities. The. Ethics Commission has interpreted "representation" as that term is used in Se::ivn 3(e) to prohibit: Mr. Louis G. O'Brien May 26, 1982 Page 3 1. personal appearance before the governmental body, including but not limited to negotiations on contracts; 2. attempts to influence the governmental body; 3. participation in any manner before this governmental body in any case over which you had supervision, direct involvement or responsibility while employed by the governmental body; 4. lobbying, i.e. that is, representing the interests of any person before the governmental body in relation to legislation, regulations, etc. See Russell, 80 -048; Seltzer, 80 -044. The mere fact of preparing and signing as preparer, documents or having your name appear as an employee who will serve in regard to a proposed contract will constitute an attempt to influence your former governmental body, if such representations are made before the Bureau of Highway Design. Kilareski, 80 -054. You may, however, assist in the preparation of any docu- ments to be presented to or appearances to be made by another before the Bureau, as long as you are not identified as the preparer. Of course, the ban on representation does not preclude general informational inquiries of the Bureau. Cutt, 79 -023. Nor does this Section preclude you from appearing and representing persons before governmental bodies other than PennDot's Bureau of Highway Design; contacts with and appearances before DER or the Governor's Energy Council are not restricted. Conclusion: Applying the above advice to your eight specific questions, the Commission finds that Section 3(e): 1. restricts your ability to personnally participate in demonstration projects of new materials before the Bureau for the one -year period following your retirement; 2. restricts your ability to prepare data and make technical presenta- tions to the extent that such presentations are made personally to the Bureau or as you might appear or are identified as the preparer; otherwise, you may prepare and assist in such projects; 3. has no affect on your ability to work with PSU on research projects as this was not the governmental body with which you were associated; 4. restricts your ability to prepare bidding documents for low bid state contracts and direct construction activities only where the documents are presented to the Bureau; 5. restricts your ability to contact or supply technical data or reports to the Bureau of Highway Design where your personal appearance or signature would be used, but not to the Bureaus of Maintenance, Services, or Contract Quality; Mr. Louis G. O'Brien May 26, 1982 Page 4 6,_ does not preclude your assisting your replacement on Interactive Com- puter Design and Drafting; such assistance does not constitute repre- sentation as discussed above and so long as this does no constitute an attempt to influence your former governmental body; 7e does not restrict your abilit: to contact Pennbet staffers on committee business, in your capacity as a member of the Transpor- tation Research 3oard provided that the contact does not involve representation before the Bureau or is limited to General informatictial inquiries; 8. does not restrict your ability to contact, inquire 6: or participate in g -oup discussions with PennDot staffers on matters of industry - wide implications. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and comr ;fitted the acts complained of in reliance on the Advice given. This letter is a public record and will be made available ;.s such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. BF /rdp Sincerely, cc; Thomas D. Larson, Secretary Department of Transportation �C. an•ra S. r ianson General Counsel Louis G. O'Brien 3431 Alinda Circle Camp Hill, PA 17011 Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 June 9, 1982 RE: Governmental Body, Further Restrictions Dear Mr. O'Brien: This serves to amend an act as an adendum to the previously issued advice to you dated May 26, 1982 and No. 82 -547. In that advice we indicated that your governmental body with which you had been associated was restricted to the Bureau of Highway Design. Unfortunately, although you had provided us with sufficient information on this point in your letter of May 6, 1982, we over looked the fact that you have also been asociated for the period of August 1, 1968 through November 3, 1981 with the Bureau of Highway Maintenance in the Department of Transportation. In previously issued rulings the Commission has determined that where an individual has been associated with more than one governmental body within the year prior to his departure from state services he may be deemed to be precluded from appearing and representing any person before more than one governmental body. See Sonneshine, 80534. Thus, in your case, because of association with the Highway Maintenance Division ended only as of November 3, 1981, you must be deemed to have been associated with that Highway Maintenance Division and therefore precluded from representing persons before that entity for the peiod of November 3, 1981 through November 3, 1982. Consequently, we must alter our conclusions reached in your previously issued advice to the extent that you ability to appear personally before the Bureau of Highway Maintenance would be restricted for the one year period up through November 3, 1982. The restrictions that would apply to this Bureau would be essentially the same as those that would have been applied to your representation before the Bureau of Highway Design. Specifically, in response to Item No. 1 State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Louis G. O'Brien June 9, 1982 Page 2 contained in the :-eious advice, you should not personally partiLipate in the demonstration projects for new mzt.er.ials before the Bureau of Highway Maintenance, as well Fs the Bureau of Highway Design, ex ept that you may direct employees of your new employer in demonstration so long as you make no actual attempt to influence the decision of the Bureau to whom t" °.s demonstration is direct , In relation to No 5 as J 1 sted on wAr revious Advice you ability J:o supply reports or technical data to the Bureau of Highway Maintenance would a3 so be restricted in e sensc tiat you : personal appearances or signature shoulC not be used o: such items. I regret any inconvenice this over -sight on our pug:'; may have cause. This advice will be made part of our original response and the protections associated with Section 7(9)(ii) of the Ethics Act are applicable to this adendum. Should you have any further questions '.n regard tc, your duties and responsibilities please feel free to contact us again. SSC /rdp cc: Thomas D. Larson, Secretary Sincerely, Sandra S. Christiansor General Counsel